Submission to the Committee of Ministers from the Committee on the Administration of Justice (CAJ) in relation to the supervision of the cases concerning the action of the security forces in Northern Ireland Jordan v the United Kingdom, judgment final on 4 August 2001 Kelly and Ors v the United Kingdom, judgment final on 4 August 2001 McKerr v the United Kingdom, judgment final on 4 August 2001 Shanaghan v the United Kingdom, judgment final on 4 August 2001 McShane v the United Kingdom, judgment final on 28 August 2002 Finucane v the United Kingdom, judgment final on 1 October 2003 and Hemsworth v UK, judgment final on 16 October 2013 McCaughey & Others v UK, judgment final on 16 October 2013 February 2019 1st Floor, Community House Citylink Business Park Tel – 028 9031 6000 6A Albert Street Email – [email protected] Belfast BT12 4HQ Web – www.caj.org.uk 1 The Committee on the Administration of Justice (CAJ) was established in 1981 and is an independent non-governmental organisation affiliated to the International Federation of Human Rights (FIDH). Its membership is drawn from across the community. This Rule 9 communication is for consideration at the 1340th meeting of the Ministers’ Deputies in March 2019. CAJ has regularly made Rule 9 communications to the Committee of Ministers on the ‘McKerr group of cases’ most recently in August 2017. These submissions have charted the evolution of the ‘package of measures’ agreed to by the UK further to the above judgments, and their proposed replacement with measures agreed by the UK and Ireland, and political parties in the Northern Ireland Executive, under the December 2014 Stormont House Agreement (SHA). The Committee of Ministers last examined the execution of these cases during its 1318th DH meeting (June 2018) and adopted decisions urging (in summary): Reiterating the “urgent need” to take forwards outstanding investigations in the individual cases “without further delay”, including in the Finucane case once domestic litigation is concluded; “Recalled their serious concerns about the lack of progress in the establishment of the Historical Investigations Unit and other legacy institutions and underlined that, regardless of the complexity of the broader political picture, it is imperative that a way forward be found to enable effective investigations to be conducted, particularly in light of the length of time that has already passed since these judgments became final and the failure of previous initiatives to achieve effective, expeditious investigations as required by the judgments in this group;” and welcomed publication on 11 May 2018 of the SHA consultation and draft legislation; Recalled in 2013 the Court indicating the UK “must take as a matter of some priority all necessary and appropriate measures to ensure that, in cases where inquests concerning killings by the security forces in Northern Ireland are pending, the procedural requirements of Article 2 are complied with expeditiously; “ “Expressing concern that delays in inquest proceedings continue, noted therefore with interest the judgment of the High Court of Northern Ireland of 8 March 2018 which both underlined the obligation to ensure that the Coroners Service could effectively comply with Article 2, irrespective of whether an overall package was agreed to deal with all legacy issues, and directed a reconsideration of the question of the provision of additional funding for legacy inquests which should not be postponed until broader political agreement is resolved;” Noted with satisfaction the UK’s indication that legacy inquest funding would be revisited and strongly encouraging the UK to properly resource without any further delay legacy inquests in accordance with the NI Lord Chief Justice’s proposals; 1st Floor, Community House Citylink Business Park Tel – 028 9031 6000 6A Albert Street Email – [email protected] Belfast BT12 4HQ Web – www.caj.org.uk 2 Summary of Key Developments since previous decisions: Public Consultation and draft legislation on Stormont House Agreement The public consultation, including draft legislation, on the implementation of the legacy institutions in the 2014 Stormont House Agreement, that was opened by the UK government on the 11 May 2018, was extended to October 2018; Whilst there are a number of positives in the draft, there are also provisions that would currently not be ECHR compatible. CAJ along with academics forming the ‘Model (SHA) Bill’ Team have made a detailed submission to the consultation, the Executive Summary of which is included as an Appendix to this submission; Since the consultation closed in October 2018 there has been ongoing dialogue as regards the proposals. However, to date the UK has not formally set out a timetable for the publication of revised proposals, amendments to the draft legislation or set a date for its introduction to the UK Parliament. The Ministers’ Deputies may wish to press the UK for clarity and a clear timetable for the introduction of the SHA legislation, in an ECHR complaint manner, into the UK Parliament One of the main concerns that delayed the original consultation was the insertion by the UK of a ‘national security veto’ power vested in UK Ministers to redact family reports from the HIU or ICIR into draft legislation. This power is explicitly defined as relating to the onward disclosure of material from the intelligence branches of the police, military and security services and as such appears designed to have the purpose or effect of permitting the concealment of human rights violations conducted by state agents; During the reporting period the ‘national security veto’ issues were brought into further focus by reports from the Police Ombudsman into the Loughinisland massacre and the subsequent Police arrests of journalists; the question of prosecutorial decision making further to Operation Kenova (an investigation by an independent team into a state informant in the IRA, undertaken through the ‘call in’ function of the package of measures; and the trial of a Loyalist commander and state agent, who pleaded guilty to over 500 offences, including 5 murders, but was eligible for immediate release following his trial under ‘assisting offender’ legislation. Proposals for security force amnesty and misinformation on legacy cases In November 2017 the UK government indicated it would include a recommendation by Defence Committee of the UK Parliament in April 2017 on a ‘statute of limitations’ for members of the armed forces in the SHA consultation. This question was ultimately not explicitly included in the consultation although a question on alternative approaches was. This issue led to a split in the UK cabinet and a delay to the consultation. A further proposal is said to be under consideration by the UK Attorney General to reinstate a de facto power to veto prosecutions of soldiers, by 1st Floor, Community House Citylink Business Park Tel – 028 9031 6000 6A Albert Street Email – [email protected] Belfast BT12 4HQ Web – www.caj.org.uk 3 virtue of relevant offences requiring his consent, should this be taken forward it would represent a significant reversal of the reforms of the NI Peace settlement; Disinformation by the UK Executive has unfortunately continued, including an erroneous assertion by the Prime Minister in the UK Parliament that current legacy investigations only focus on the security forces; assertions from the UK’s chief military officer that he would ‘stamp out’ legacy investigations, and a confused assertion from the Northern Ireland Secretary of State that she wished to stop all legacy investigations whilst officially supporting the SHA; Challenges to the powers of the Police Ombudsman and Police arrest of journalists Further to the findings of paramilitary collusion of the 2016 Police Ombudsman’s report into the 1994 Loughinisland massacre, an award winning documentary in 2017– No Stone Unturned– revealed further evidence of human rights violations through collision in the six murders. Following these two developments retired police officers launched a legal challenge to the Ombudsman’s powers to make findings, and the PSNI arrested the journalists who made the documentary; The retired officers’ challenge to the Ombudsman’s legal powers to make findings were initially successful, until it transpired that the Judge in the case had represented the same applicants, as a lawyer, in similar past proceedings. Further to applications from the families for the Judge to recuse himself, the Judge stepped aside and the case was heard afresh by another Judge who dismissed the application; The legal challenge delayed the publication of pending Reports by the Ombudsman into other cases examining collusion. The judgment however appeared to clear the way for publication. Shortly after however it transpired that the PSNI had withheld significant amounts of sensitive disclosure from the Ombudsman, understood to be covert policing materials. The belated appearance of these materials, and the need to investigate them has delayed the publication of the reports, potentially beyond the term of office of the current Police Ombudsman. The Secretary of State is to appoint a successor. This whole episode raises significant concerns; In a case that has raised international concern, the two journalists Trevor Birney and journalist Barry McCaffrey, were arrested in August 2018 in relation to the use of leaked official documents, and released on bail, and their homes and the offices of several media companies raided by over 100 officers.